IN LABOUR APPEAL COURT OF SOUTH AFRICA HELD · PDF filein labour appeal court of south africa...

Click here to load reader

  • date post

    08-Jun-2018
  • Category

    Documents

  • view

    213
  • download

    0

Embed Size (px)

Transcript of IN LABOUR APPEAL COURT OF SOUTH AFRICA HELD · PDF filein labour appeal court of south africa...

  • IN LABOUR APPEAL COURT OF SOUTH AFRICA HELD AT JOHANNESBURG

    CASE NO: CA5/2007

    In the matter between: SOUTH AFRICAN MUNICIPAL WORKERS 1st APPELLANT UNION (SAMWU) AA EWERTS & 16 OTHERS 2nd to 18th APPELLANTS and KANNALAND MUNICIPALITY RESPONDENT

    Judgment

    Tlaletsi AJA

    Introduction

    [1] This is an appeal from a judgment of Nel AJ sitting in the Labour Court

    in a trial relating to a dismissal dispute between the appellants and the

    respondent. The first appellants contended that the second to

    eighteenth appellants (the individual employees) who were all

    members of the first appellant, a representative trade union

    (SAMWU), were unfairly dismissed by the respondent on 30

    November 2004. The respondent on the other hand, contended that

    the dismissal of the individual employees was based on its operational

    requirements and was fair.

    [2] The dispute concerning the fairness of their dismissal was referred to

    the South African Local Bargaining Council-Western Cape (the

    Bargaining Council). The dispute remained unresolved as at 27

    November 2004 and a certificate to that effect was issued by the

  • 2

    Bargaining Council on 5 December 2004. The matter was referred to

    the Labour Court for adjudication.

    [3] It is perhaps apposite to state that the matter was heard by the

    Labour Court from 11 to 15 September 2006. Only the respondent

    tendered oral evidence.

    [4] The Labour Court gave its judgment on 23 January 2007. The Labour

    Court found that the dismissal of the individual employees was

    substantively fair but procedurally unfair. Although the Labour Court

    found the dismissal to be procedurally unfair, it made no order for

    compensation and costs.

    [5] Aggrieved by that part of the order of the Labour Court relating to the

    substantive fairness of the dismissal and failure to make an order for

    compensation and costs, the appellants applied for leave to appeal

    against the whole of the judgment of the Labour Court. Leave was

    granted on 28 May 2007.

    Factual background

    [6] The following facts are either common cause or not in dispute. The

    respondent is a municipality established in terms of the Local

    Government: Municipal Structures Act 117 of 1998 (the Structures

    Act). The process of establishing the respondent involved the

    amalgamation of several municipalities, namely Ladysmith, Calitzdorp,

    Zoar and Van Wyksdorp.

    [7] During 2003, representatives of the South African Local Government

    Association (SALGA) (of which the respondent is a member), the first

    appellant as well as its sister trade union, the Independent Municipal

    and Allied Trade Union (IMATU) entered into a collective agreement

  • 3

    termed the Organisational Rights Agreement ("the ORA") under the

    auspices of the Bargaining Council. The ORA sought to regulate inter

    alia, the organisational rights afforded to the trade unions, the conduct

    of collective bargaining and the resolution of disputes at national level.

    The agreement was binding on all municipalities affiliated to SALGA.

    [8] Clause 7 of the ORA made provision for the establishment of Local

    Labour Forums at each workplace. The workplaces in this instance

    were the member municipalities. Such fora were compulsory dispute

    resolution bodies at the workplaces. Disputes could be referred by

    either the trade unions or municipalities to these fora. It is important

    to note that the Local Labour Forums were not empowered to deal with

    matters that are bargained at national and provincial forums. Their

    powers and scope were only limited to matters relating to the work

    places and which were not the subject of bargaining at either national

    and or provincial level.

    [9] During December 2002 SALGA, SAMWU and IMATU entered into a

    collective agreement which was commonly known as the Placement

    Agreement. Clause 3 of the Placement Agreement required each new

    municipality to prepare final organograms of all departments and to

    submit it to the Local Labour Forums for consultation prior to their

    finalisation by the Councils of the municipalities. Should such

    consultation at the Local Labour Forums fail to reach consensus, the

    concerned municipality had the right to unilaterally adopt and

    implement the aforesaid new organogram.

    [10]Following its amalgamation, the respondent produced an organogram

    containing the proposed structure for the municipality as envisaged by

    the Placement Agreement. This organogram was consulted on in the

    Local Labour Forum and agreement was reached. Placements in terms

    of the organogram were subsequently effected. The date when the

  • 4

    agreement on the organogram and when it was subsequently

    implemented are not provided. However, nothing turns on the said

    dates safe to note that the respondent had complied with the

    Placement Agreement by submitting the final organograms to the

    Local Labour Forum for consultation and an agreement was reached.

    [11]During March 2004 an organisation known as Zader Municipal Services

    was tasked with investigating the parlous financial state of the

    respondent. Out of this exercise a report dated 23 March 2004 known

    as the Zader Report was produced. The report made certain

    proposals that included a new organogram for the municipality. The

    report stated inter alia that the new organogram had been drawn up in

    conjunction with the Municipal Manager and Heads of Departments of

    the respondent; that there had not been consultation at the Local

    Labour Forum and that the consultation process be completed once the

    Local Labour Forum had been reconstituted and its powers defined. It

    is important to note that the new organogram had the effect of

    rendering at least 28 employees redundant as they would not be

    catered for in the budget of the respondent.

    [12]During the course of the year 2004 the Member of the Executive

    Council (MEC) responsible for Local Government and Housing in the

    Western Cape Province, acting in terms of Section 106 of the Local

    Government: Municipal Systems Act No: 32 of 2000, (the Systems

    Act) appointed L A Dekker (Dekker) and Oppelt to conduct an

    investigation into the affairs of the respondent. There were at that

    time serious allegations of maladministration at the respondent.

    Dekker testified that he is an attorney specialising in Labour Law and

    Municipal Law. He had been in the municipal field for about thirty

    years and also ten years doing Labour matters. The investigating team

    produced a report on its activities dated 16 April 2004. This report

    became known as the Dekker Report. All relevant stakeholders

  • 5

    including the trade unions, councillors, officials and members of the

    public participated in the process. Dr Kaap whose entity produced the

    Zader Report also made a presentation to the investigating team.

    [13]Dekker and Oppelts brief were to investigate alleged

    maladministration and allegations concerning corrupt activities that

    were taking place at the respondent. The investigators were to gather

    evidence, make findings and recommendations to the MEC. The

    following are some of the findings of the investigation relevant to this

    appeal:

    13.1 It was found that the recommendation that was made by a

    certain municipal finance official who was appointed to assist the

    respondent during 2002 about ways to deal with the

    respondents financial deficit were not as yet implemented by

    2004;

    13.2 Zader Report had established that the income of the respondent

    was below than what was budgeted for, and that there had been

    personnel appointed without being budgeted for. The team then

    prepared a financial recovery plan that was adopted by the

    respondent and approved by the MEC. This plan had also not

    been implemented;

    13.3 Loans and overdrafts were not being repaid;

    13.4 Politicians at the respondent were involved in appointing staff.

    Through this unauthorised process they improperly appointed

    their family members and relatives;

    13.5 Staff appointments were made outside the policy framework of

    the respondent. The municipal manager was contrary to policy

    framework not involved in the appointment process. The staff

    policy framework was only one page and proved inadequate;

    13.6 Post levels were not allocated and job descriptions were

    incomplete. A glaring example is that of a general labourer at

  • 6

    the cemetery at post level 14, who was rewarded by being

    elevated eleven notches up to the position of internal auditor by

    the Mayor after he testified in the mayors defence at a rape

    trial. Unsurprisingly, the appointee did not have the necessary

    qualifications and experience of internal auditor position;

    13.7 There were irregular and ad hoc upgrading of post levels without

    changing the content of the post or providing reasons for such

    steps;

    13.8 Appointments, promotions and upgrading of posts were done by

    the Local Labour Forum and submitted to the Executive Mayoral

    Committe